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HQ 559510





February 27, 1996

MAR-2-05 RR:TC:SM 559510 MLR

CATEGORY: MARKING

Area Port Director
U.S. Customs Service
300 2nd Avenue, South
Great Falls, Montana 59403

RE: Internal Advice; Country of origin marking of imported video sleeves; Canada; Article 509; NAFTA; 19 CFR 134.46; U.S. address

Dear Sir:

This is in reference to your letter of October 23, 1995, requesting internal advice on behalf of Echo Video Productions, Inc., ("Echo Video") regarding the country of origin marking on video sleeves. Samples of video sleeves were submitted.

FACTS:

It is stated that Echo Video duplicates video cassettes in Canada under a license from Hemdale Home Video, Inc. The videos are packaged in video sleeves containing information about the video cassette. Some of the video sleeves are printed in the U.S., while some are printed in Canada. The bottom back panel of the video sleeves contain the reference " 1994 ... Hemdale Home Video, Inc., Los Angeles, CA, 90048," and the video sleeves from the U.S. are also marked "Printed in U.S.A." Some of the top flaps of the video sleeves are marked "Made in Canada." Your office suggested that Echo Video add a "Made in Canada" sticker to the back of the video sleeves near the U.S. reference.

ISSUE:

What are the country of origin marking requirements for the video sleeves?

LAW AND ANALYSIS:

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304) provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in which the article was manufactured or produced, appears on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning. Customs has specifically ruled that in order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name of the geographical reference other than the country of origin appears.

Customs has issued several rulings addressing when geographic references appearing in connection with an imported article trigger the requirements of 19 CFR 134.46. In some rulings, Customs determined that certain information provided to enable consumers to contact the company regarding complaints or questions about the product did not trigger the requirements of 19 CFR 134.46. In Headquarters Ruling Letter (HRL) 732329 dated July 12, 1989, Customs ruled that a U.S. address on a warranty tag attached to imported wearing apparel did not pose a risk of confusion or deception to the ultimate purchaser, and, therefore, did not trigger the requirements of 19 CFR 134.46. See also HRL 733963 dated January 7, 1991, where Customs determined that a U.S. address on a hang tag was not misleading since it appeared in connection with a widely publicized customer assistance marketing campaign; and HRL 733909 dated January 15, 1991, where a U.S. address of an environmental group on a hang tag was determined not to be misleading. The basis of these rulings was that while the names and addresses, taken alone, would appear to be the kinds of potentially confusing information addressed by 19 CFR 134.46, their context was such that no confusion as to country of origin was conceivable.

In certain cases, Customs has ruled that a U.S. reference, such as where it is part of a design on a garment, does not trigger the requirements of 19 CFR 134.46. See HRL 723604 dated November 3, 1983, where Customs held that the use of the abbreviated "USA" displayed on imported women's wearing apparel did not trigger the requirements of 19 CFR 134.46, because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the country of origin of the article on which it appeared. However, in HRL 733026 dated August 16,1990, Customs disagreed that a U.S. address on the bottom flap of a carton was only relevant to identify the owner of the trademark, and found that an ultimate purchaser could still be confused as to the country of origin of the imported product. Accordingly, Customs found that 19 CFR 134.46 was triggered and required the correct country of origin to be placed in close proximity to the U.S. address. Furthermore, in HRL 734027 dated May 21, 1991, Customs considered small boxes used to package perfume. The boxes were printed with the U.S. address of the perfume distributor, and the bottom flap was marked "PRINTED IN JAPAN." Customs stated that since all the writing on the boxes other than "PRINTED IN JAPAN" pertained to the perfume, the ultimate purchaser would realize that the U.S. address concerns the perfume and not the boxes, and, therefore, the phrase "PRINTED IN JAPAN" would not have to be in close proximity to the U.S. address. However, Customs also stated that if the boxes were used to package imported perfumes, the boxes would have to be marked with the country of origin of the perfumes in close proximity to the U.S. address as required by 19 CFR 134.46.

In this case, the U.S. address on the video sleeve does not appear for warranty or other informational purposes. Furthermore, it does not appear as part of a design. Accordingly, similar to HRL 733026 where the association between the U.S. address and the trademark was not clear, and HRL 734027 where Customs stated that if the boxes were used for imported perfumes, the country of origin of the perfume would be required to be placed in close proximity to the U.S. address, it is our opinion that the U.S. address on the video sleeves triggers the requirements of 19 CFR 134.46. The copyright symbol, along with the date of the video and the U.S. address could confuse the ultimate purchaser into believing that the video was made in the U.S. Additionally, the words "Printed in U.S.A." could be interpreted as referring to the video cassette and not the video sleeve. Furthermore, it is our opinion that the placement of the "Made in Canada" marking on the top flap is not a conspicuous location, as a consumer is most likely to look at the front and back flap which describe the contents of the video. Therefore, it is our opinion that the country of origin of the video cassettes should appear, preceded by "Made in" or "Product of" or other words of similar meaning, in close proximity to the U.S. address and in comparable size letters as required by 19 CFR 134.46. Since Customs has consistently held that close proximity equals the same side(s) or surface(s) in which the name of the geographical reference other than the country of origin appears, the country of origin of the videos should be placed on the back panel of the video sleeves. The placement of the sticker "Made in Canada" on the samples submitted is appropriate.

HOLDING:

Based on the information presented, it is our opinion that the U.S. address on the video sleeves triggers the requirements of 19 CFR 134.46. Therefore, the country of origin of the video cassettes, preceded by "Made in" or "Product of" or other words of similar meaning, will be required in close proximity to the U.S. address and in comparable size letters as required by 19 CFR 134.46.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director

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